Defamation / Reputation
Afanasyev v. Zlotnikov
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A Canadian businessman sued the publisher of the Toronto Star newspaper for defamation arising from an article containing comments regarding the proposed development of the businessman’s properties. Comments made by residents of surrounding properties alleged the businessman used political connections to secure government approval for the plan.
The trial court refused the Toronto Star’s defense of “responsible journalism” and awarded the businessman millions of dollars in damages. The intermediate court of appeals reversed, holding that the trial court’s failure to allow the defense was an error. On appeal, the Canadian Supreme Court held that while defamation limits the freedom of expression guaranteed under Section 2(b) of Canada’s Charter of Rights and Freedoms, the defense of “responsible communication” is appropriate when (1) the publication complained of something related to a matter of public interest; and (2) the “publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances.”
The Canadian Supreme Court remanded the case to the trial court for a new trial, in which the Toronto Star was permitted to assert a “responsible communication” defense.
The defendant, the Torstar Corporation, was the publisher of the Toronto Star (“Star”)—a Canadian newspaper with mass syndication. The plaintiff, Peter Grant, was a successful Canadian businessman and developer.
The Star published an article containing comments regarding the proposed development of a golf course on one of Grant’s properties. The comments came from residents of the properties surrounding Grant’s property who opposed the development of a golf course near their property. The comments alleged that Grant had used his political connections, and specifically his relationship with Ontario’s then-premiere Mike Harris, to secure permission for the development. One resident in particular claimed that, due to Grant’s use of his political connections, the golf course development was a “done deal.”
The Star contacted Grant for comment prior to publication, but Grant declined. The Star then published the article and Grant sued for defamation.
At trial, because the court did not allow the Star to use the defense of “responsible journalism”, the jury awarded Grant millions in damages. The Star appealed. The appellate court found that the trial court erred in denying the defense of responsible journalism and remanded for a new trial. Grant appealed to the Supreme Court.
The Supreme Court of Canada dismissed both the appeal and the cross appeal, with all but one judge joining in the majority opinion. The Court acknowledged that defamation as a tort places limits on the freedom of expression guaranteed under Section 2(b) of Canada’s Charter of Rights and Freedoms, but found that such a limit should not go as far as to place a “chill” on the freedom of expression.
In order to reduce the risk of “chilling” expression, the Court established the “responsible communication” defense. The Court found that the defense was necessary to remedy the imbalance in the common law that provided protection to reputation at the expense of freedom of expression. To demonstrate “responsible communication”, a defendant must show both that (1) the publication complained of something related to a matter of public interest; and (2) the “publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances.” The Court further found that this defense can be applied to all communications, not just communications by journalists.
The “relevant circumstances” include the seriousness of the allegation; the public importance of the matter; the urgency of the matter; the status and reliability of the source; whether the plaintiff’s side of the story was sought and accurately reported; whether the inclusion of the defamatory statement was justifiable; and whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth.
The Court remanded the case back to trial for a jury to decide questions of fact consistent with its holding.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression because it limits the instances in which defamation can succeed in tort claims. The decision set out a new test to protect both journalists and private individuals who may have harmed a plaintiff’s reputation, but did so through a “responsible communication.”
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Canada is a common law country. All lower court’s in Canada are therefore bound to apply the Supreme Court’s holding in this case to similar future cases.
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